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In the Matter of the Civil Commitment of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 16, 2012

IN THE MATTER OF THE CIVIL COMMITMENT OF L.J. SVP-535-09.

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-535-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2012

Before Judges Graves and Koblitz.

L.J. appeals from an amended judgment entered on March 10, 2010, committing him to the Special Treatment Unit, a facility for the custody, care, and treatment of sexually violent predators under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

The SVPA's definition of "sexually violent predator" includes an individual "who has been convicted . . . of a sexually violent offense . . . and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26.

Courts are authorized to order the involuntary civil commitment of an individual under the SVPA when the State has proven "by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator."

N.J.S.A. 30:4-27.32(a). The Court has explained the standard for involuntary commitment under the SVPA as follows:

To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts . . . . [T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.

Those findings . . . require an assessment of the reasonably foreseeable future. No more specific finding concerning precisely when an individual will recidivate need be made by the trial court. Commitment is based on the individual's danger to self and others because of his or her present serious difficulty with control over dangerous sexual behavior.

[In re Commitment of W.Z., 173 N.J. 109, 132-33 (2002).]

The scope of appellate review of a trial court's decision in a commitment proceeding has been described as "extremely narrow, with the utmost deference accorded the reviewing judge's determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978).

The trial court's determination may only be modified "where the record reveals a clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003) (internal quotation marks and citation omitted). A reviewing court must be mindful that the legislative intent in adopting the Act was "to afford protection to society from those sexually violent predators who pose a danger as a result of a mental abnormality or personality disorder which makes them likely to engage in repeated acts of predatory sexual violence." In re Civil Commitment of E.D., 353 N.J. Super. 450, 456 (App. Div. 2002).

On May 27, 1988, when he was twenty-one years old, L.J. pled guilty to four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). A report prepared by the Adult Diagnostic and Treatment Center (ADTC) provided the following background information:

[T]he victims of the present offenses were six male children who were between the ages of four and ten. The official record indicates that [L.J.] sexually assaulted these young boys on at least two separate occasions. Reportedly, these [s]exual [a]ssaults included performing fellatio upon four of the victims, and fondling the penis and buttocks of two of the victims.

During the instant examination, [L.J.] acknowledged that the above facts were accurate. According to [L.J.], his first three victims were the grandchildren of an adult with whom he was living at the time. According to [L.J.], he performed fellatio upon these three children approximately every other weekend for a two or three month period. [L.J.] claims that he was arrested for this behavior and released on bail. While out on bail, he reportedly performed fellatio upon a male child who was a neighbor of his mother's. In addition, he reportedly engaged in mutual fondling with two additional young male victims.

The ADTC evaluation found that L.J. suffered "from a deviant sexual arousal pattern involving underage males," and that his repetitive behavior "was performed quite compulsively." The evaluation also noted that L.J.'s "personal insecurities, limited intellectual resources, and early experience of having been sexually abused himself make him vulnerable to turn to children for the satisfaction of sexual and, possibly, affiliated needs."

On September 1, 1998, L.J. was sentenced to an aggregate term of forty years with ten years of parole ineligibility to be served at the ADTC. L.J. participated in treatment while he was at the ADTC. However, in a report dated March 16, 2009, summarizing his treatment, it was noted that L.J.'s involvement in treatment was impaired by his "pattern of acting out in the institution," which resulted in numerous periods of Administrative Segregation, placement in the Restricted Activities Program, and Protective Custody.

After the State filed a petition to civilly commit L.J. under the SVPA, he was temporarily committed to the Special Treatment Unit pending a hearing. At the hearing on March 5, 2010, the State presented the testimony of Pogos Voskanian, M.D., a psychiatrist and Doreen Stanzione, Psy.D., a psychologist. L.J. did not testify, and he did not present any evidence on his behalf.

Dr. Voskanian diagnosed L.J. with pedophilia, bipolar disorder, borderline personality disorder, and borderline intellectual functioning. Dr. Voskanian also confirmed that his written report dated January 12, 2010, accurately summarized his opinions based on his review of the available information and his interview with L.J. on January 8, 2010.

Notwithstanding L.J.'s treatment at the ADTC, Dr. Voskanian described him as a "practically untreated sex offender with persistent high risk of sexual recidivism." Dr. Voskanian also concluded, with a reasonable degree of medical certainty, that L.J.'s mental abnormality and personality disorder placed him "at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care, and treatment." Dr. Stanzione evaluated L.J. on January 20, 2010, and her findings and conclusions were consistent with Dr. Voskanian's. As she noted in her written report:

[L.J.] was found to suffer from 4 psychiatric conditions, two of which [qualify] as a mental abnormality as defined by New Jersey's SVPA. Specifically, this examiner came to the opinion, within a reasonable degree of psychological certainty, that [L.J.] suffers from Pedophilia, which, for [L.J.], is an acquired or congenital condition affecting his emotional, volitional, and behavioral capacity that predisposes him to commit sexually violent acts, as defined by New Jersey's SVP [s]tatute. In addition, [L.J.] also received a diagnosis of Borderline Personality Disorder which is characterized by affect dysregulation and self sabotaging coping behaviors that increases the likelihood that [L.J.] will act on his paraphilic arousal and limits [L.J.'s] ability to adequately integrate therapeutic interventions. [L.J.] also suffers from Bipolar disorder which also contributes to his difficulty controlling impulses when not sufficiently managed.

Based on the reviewed records and clinical interview, and within a reasonable degree of psychological certainty, in my opinion [L.J.] is highly likely to engage in future acts of deviant sexual behavior as defined by the SVP statute if released into the community at this time; thus, he is recommended for commitment to the STU.

In an oral decision, the trial court found that both of the State's witnesses "were very credible." The court also found the State established by clear and convincing evidence that L.J. had been convicted of sexually violent offenses and, due to his "mental abnormalities and personality disorders," he is "highly likely to engage in further acts of sexual violence" if he is not "confined in a secure facility for controlled care and treatment."

On appeal, L.J. presents the following arguments:

POINT I

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT L.J. IS A SEXUALLY VIOLENT PREDATOR AND AT PRESENT THE RISK OF RECIDIVISM IS AT A SUFFICIENTLY HIGH LEVEL TO JUSTIFY COMMITMENT.

POINT II

L.J. AND OTHERS SIMILARLY SITUATED SHOULD BE ALLOWED TO ENTER A PROGRAM INVOLVING NOT ONLY THERAPY BUT WHICH WOULD ALSO INVOLVE THE GRADUAL LESSENING OF HIS RESTRICTIONS SO THAT HE COULD PROVE THAT HE HAS INCORPORATED THE THERAPY INTO HIS BEHAVIOR AND IS NOT A DANGER TO THE COMMUNITY.

Based on our review of the record, we conclude the trial court's findings are amply supported by substantial credible evidence, and the matter was correctly decided. L.J.'s arguments do not warrant any additional discussion. R. 2:11- 3(e)(1)(E).

Affirmed.

20120516

© 1992-2012 VersusLaw Inc.



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